Deliberative Constitutionalism Through the Lens of the Administrative State

‘Deliberative democrats’ argue for a conception of democracy based on a discussion that has the potential to transform for the better the preferences of the participants. They thus oppose conceptions of democracy in which democracy is seen as no more than the most efficient set of political mechanisms for aggregating preferences. They also perceive an inherent connection between the quality of the kind of political discussion they favour and law because they are committed to a particular version of constitutionalism in which there is a distinction between deliberating about constitutional fundamentals and ordinary legal reasoning. They are thus dualists when it comes to constitutional deliberation and differences between them tend to be about in what institution or body of people deliberation about constitutional fundamentals is best located.

I will sketch here a rival account of deliberative constitutionalism: ‘multi-level monism’, which owes much to Kelsen’s legal and political theory, a perhaps surprising debt given his reputation as one of the leading legal positivists of the last century. My argument is that when Kelsen’s understanding of legal order is connected with his theory of democracy, we can see how deliberative constitutionalism is the theory of legal order, perhaps another surprise since Kelsen’s conception of democracy is one in which democracy is seen as little more than the most efficient set of political mechanisms for aggregating preferences. But that little bit more is important. It comes about through the operation of what Kelsen called the ‘principle of legality’ in both the political order of a democracy and its legal order. Moreover, the way in which this principle articulates the relationship between the two orders expresses a normative ideal – the ideal of deliberative constitutionalism – which one can say is at the heart of his allegedly scientific or ‘pure’ legal theory.

David Dyzenhaus is University Professor of Law and Philosophy at the University of Toronto and Fellow of the Royal Society of Canada. He is presently a Fellow of the Wissenschaftskolleg zu Berlin. In 2014-15, he was the Arthur Goodhart Visiting Professor in Legal Science in Cambridge. His books include: Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy; The Constitution of Law: Legality in a Time of Emergency; Legality and Legitimacy: Carl Schmitt, Hans Kelsen, and Hermann Heller in Weimar; and Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order.